Nobody Thinks the Death Penalty Is a Good Idea (Or Is Willing to Say So Outright)

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01/05/2010 12:35 PM |


The American Law Institute, whose 1962 Model Penal Code guided the legal and ethical language in support of capital punishment in America following its reinstitution, after a brief moratorium, in the 70s, has disavowed its previous work in support of the death penalty:

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Basically, this group of a few thousand lawyers, judges and scholars has concluded capital punishment cannot be administered in a constitutionally acceptable way in America. Which is true, objectively true, and nice to hear from people who damn well ought to know as much. But.

Just like David Grann’s important recent New Yorker article about Texas’s execution of an innocent man, the ALI’s decision, predicated on problems of application, goes short of suggesting that there’s anything inherently barbaric about a society granting itself the power of vengeance against its own citizens—the problem, to hear these guys say it, is simply that we’re not very good at administering Old Testament justice. And if the system is broken, well, the system can be fixed, right?

Americans, as individuals and as a culture, like very much the idea of causing pain to others, especially when we know in our hearts, right where the cholesterol deposits are, that we are the righteous party. So it’s a fairly quixotic undertaking to suggest that we’re wrong to want this. But that’s exactly what’s required.

Pragmatic progressivism—we might execute an innocent man! health care reform is all about keeping costs down!—is a good way to achieve short-term gains. But only for a little while: following November’s landslide, look how quickly a large percentage of this country has made itself forget that what we witnessed over the course of this decade was an entire worldview conclusively imploding. All it takes is somebody new and reassuring to tell people that they were right to think what they thought all along.

The only way to achieve lasting and meaningful progress in the way a society thinks and acts is to offer it a new way to think about its actions. To present a credible moral framework, for current and especially for future generations to test drive when they’re shopping for an opinion about capital punishment, health care, whatever. Brief moments of compassion, for that poor innocent guy in Texas, or that one gay guy you know, will languish without adequate nourishment.

Plus, never standing on principle means the other side gets to act like they have a monopoly on morality.

One Comment

  • Has the ALI become non academic or is this the new academia?

    The ALI chose two anti death penalty activist law professors to prepare the ALI’s final review of the death penalty before their final vote against the death penalty.

    ALI could not have been duped idiots here.

    Even a non academic could rip some significant holes in their report.

    ALI, be a bit more subtle next time and pick anti death penalty folks that some ignorant few might think are neutral. At least give some appearance of objectivity, as opposed to a blatant disregard for it.

    They even misinterpreted McCleskey v Kemp, for goodness sakes. No surprise. Well, a bit of a surprise.

    Jordon Steiker, one of the authors of the ALI report, was in the audience at a death penalty debate at U of Texas Law School, wherein he asked me a question, along the lines of,

    “Dudley, are you telling me I have been improperly teaching McCleskey”. My reply was along the lines of “Yes, I suspect most, if not all law professors do.” Then, I explained why. I guess he forgot.

    As in:

    From ALI’s death penalty review, page 29 PDF,…, as roughly, in McCleskey,

    ” . . . the study concluded that defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks . . .”

    Complete, utter nonsense.

    The study results were by an odds multiplier of 4.3, not 4.3 times. What’s the difference? An odds multiplier of 4.3 MAY FIND a differential of only 2-4%, whereas 4.3 times is a differential of 330%.

    Huge variables. Some explanation:

    1) “The Math Behind Race, Crime and Sentencing Statistics”…

    2) See “The Odds of Execution” within “How numbers are tricking you”…

    NOTE: In the first review, by Paulos, I did an analysis of the Philadelphia study by Baldus. The oft wrongly interpreted 4 times differential, was an odds multiplier of 4. My analysis found that if only 2% more whites were sentenced to death and 2% fewer blacks, there would be zero statistical difference in sentencing, as opposed to the wrongly interpreted 300% differential represented by 4 times.

    Baldus could have fully explained this in the Philadelphia study, just as he could have, way back in McCleskey and anytime since.